FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 25(2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012 PARTIES : NOEL RECRUITMENT - AND - MANTAS ALISAUSKAS (REPRESENTED BY P.G. CRANNY & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-139440-taw-13/SR.
BACKGROUND:
2. The Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 25(2) of the Protection of Employees (Temporary Agency Work) Act 2012 on the 11th June, 2014. The Court heard the appeal on the 28th November, 2017.
The following is the Determination of the Court:
DETERMINATION:
Mr Alisauskas (the Complainant) is appealing against rights commissioner no r-139440-taw-13/SR issued on 1 May 2014. The Rights Commissioner decided as follows:
- based on the foregoing I declare that the complaints under Section 6 of the Act in relation to basic working and employment conditions of agency workers are not well founded; they are rejected and are not upheld.
Background
The Complainant worked for Noel Recruitment Ltd (the Respondent), a registered employment agency, from 9 July 2012 to 24 November 2014. He was placed with a client company of the Respondent United Drug Limited (the Hirer). He was paid a rate of €9.15 per hour for the duration of his placement with the Hirer.
The Complainant claims that:
- 1. He was paid at a lower rate than employees hired directly by the hirer who engage in similar work
2. That he failed to receive additional weekly remuneration which employees hired directly by the hirer were in receipt of for performing tasks which engaged the use of forklifts or pickers and
3. That he did not receive non-discretionary bunus payments issued to all employees hired directly by the hirer which bonus payments were paid in June and December and
4. That when engaged in overtime working he suffered by the calculation of that overtime and one and a half times or double his rate fo pay where his rate of pay was lower than an employee directly hired by the hirer.
- 1. He was paid a basic hourly rate of pay of €9.15 per hour where directly employed workers doing similar work were paid rates from €11.65 to €12 per hour
2. He was denied a weekly payment of €10.15 despite engaging in work with pickers or forklifts which qualified the claimant for this payment and
3. He did not receive an additional week’s salary in December 2012 or June 2013 which was paid by way of a non- discretionary bonus to directly employed workers doing similar work.
- Subject to any collective agreement for the time being standing approved undersection 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.
The Claimant is an agency worker within the meaning of the Act. He claims that during the currency of his assignment to a named hirer he was paid less that the rate paid to comparable employees of the hirer. The Claimant was paid a rate of €9.15 per hour. He claims that comparable employees of the hirer were paid rates varying from €11.65 to €12.00 per hour. He also claimed that they were paid an additional premium for driving forklift or picker trucks. He further claimed that they were paid a bonus payment
The Claimant submitted pay slips as evidence that directly employed workers were in receipt of more favourable basic conditions of employment. One of those pay slips related to another agency worker and accordingly is of no assistance to the Court in this matter. He submitted two other pay slips in support of his complaint. The name on each of the pay slips was redacted. Accordingly it was not possible to determine whether they relate to directly employed workers performing the same or similar work to that performed by the Complainant.
The Complainant argued that he had submitted sufficient evidence to shift the burden of proving compliance with the Act onto the employer. He argued that information regarding terms and conditions of employment of comparable workers directly employed by the Hirer were not available to him. He argued that they were instead in the peculiar knowledge of the Hirer. He argued that the Court should compel it to come before it to give evidence of the terms and conditions in force in respect of directly employed workers.
It appears to the Court that the Claimant’s case is grounded entirely on a small number of redacted pay slips. The Complainant argues that these disclose prima facie evidence of a widespread rate of pay that applies to directly employed workers. The Respondent argues that it cannot identify the employees involved and accordingly it cannot respond to the Complaint. It further argues that it has been advised formally in writing by the Hirer that workers directly employed to undertake the same or similar work are hired on the same terms and conditions of employment as the Complainant.
The Court has examined the pay slips submitted by the Complainant. It notes that they are redacted and are of little assistance to the Court in determining whether they relate to directly employed comparable workers. The Court also notes however that they contain a reference to a trade union contribution of €4.00 per week. Based on that information it is reasonable to speculate that there may be a collective agreement in place between the Trade Union and the Hirer regarding the terms and conditions of employment of directly employed workers. Such information therefore would not be in the peculiar knowledge of the Hirer. It would be reasonable in those circumstances to expect that the Complainant would have sought to establish with the Trade Union if such an agreement exists. No evidence of such enquiries was submitted to the Court. Accordingly the Court must conclude that the evidence presented by the Complainant in support of the Complaint must be judged on its merits and not on the basis that he has exhausted all other possibilities for discovering information that might assist his case.
Determination
Based on the information before it the Court finds that the Complainant has not made out a prima facie case that he is paid less or was employed on less favourable conditions of employment than a comparable directly employed worker. The Claimant bears the onus of proving the primary facts upon which he relies in making his claim. The Court is satisfied that he has not adduced any reliable or admissible evidence of what he alleges. In these circumstances the claim cannot succeed.
Signed on behalf of the Labour Court
Brendan Hayes
21st January, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.